Citation NR: 9737175
Decision Date: 11/04/97 Archive Date: 11/12/97
DOCKET NO. 95-16 208 ) DATE
)
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On appeal from the
Department of Veterans Affairs Regional Office in Cleveland,
Ohio
THE ISSUE
Entitlement to service connection for a liver disability, a
skin disability, hypertension, and a sinus disability due to
herbicide exposure.
REPRESENTATION
Appellant represented by: AMVETS
ATTORNEY FOR THE BOARD
Robert E. P. Jones, Counsel
INTRODUCTION
The veteran served on active duty from August 1967 to July
1969. This matter came before the Board of Veterans' Appeals
(Board) on appeal from an April 1994 rating decision by the
Department of Veterans Affairs (VA), Regional Office (RO),
Cleveland, Ohio.
The Board remanded the veteran’s claim for further
development in December 1996. In May 1997 the veteran was
sent a letter informing him that he had been scheduled for a
hearing before a Member of the Board. This letter was sent
to the veteran’s latest known address and the letter was not
returned by the Post Office. The veteran did not report for
the June 1997 hearing.
The veteran’s representative stated in a September 1997
informal hearing presentation that the RO did not contact the
TRF-2 USAR Con Group USAAC in St. Louis, Missouri for
additional service medical records. A review of the record
indicates that the RO did contact the appropriate offices in
St. Louis in late 1996 and early 1997. Additional service
medical records were received by the RO in March 1997.
CONTENTIONS OF APPELLANT ON APPEAL
The veteran contends that he is entitled to service
connection for a liver disability, a skin disability,
hypertension, and a sinus disability. He asserts that he
moved drums of herbicides during service and that he was
exposed to the herbicides when one of the drums spilled. He
maintains that he now has a liver disability, a skin
disability, hypertension, and a sinus disability as a result
of his exposure to herbicide agents.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991 & Supp. 1997), has reviewed and considered
all of the evidence and material of record in the veteran's
claims file. Based on its review of the relevant evidence in
this matter, and for the following reasons and bases, it is
the decision of the Board that the veteran has not met the
initial burden of submitting evidence sufficient to justify a
belief by a fair and impartial individual that his claims for
service connection for a liver disability, a skin disability,
hypertension, and a sinus disability, due to exposure to
herbicide agents, are well grounded.
FINDINGS OF FACT
1. The veteran’s service records show that he did not serve
in Vietnam and that none of the claimed disabilities were
present during service.
2. The veteran has not submitted any medical evidence to
support his contention that his currently claimed
disabilities can be causally related to herbicide exposure.
3. The claims of entitlement to service connection for a
liver disability, a skin disability, hypertension, and a
sinus disability are not plausible.
CONCLUSION OF LAW
Since the veteran has not submitted medical evidence to
support his contentions, and the medical evidence does not
otherwise support his claims, his claims for service
connection for a liver disability, a skin disability,
hypertension, and a sinus disability are not well grounded.
38 U.S.C.A. §, 5107 (West 1991).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
Initially, one who submits a claim for benefits under a law
administered by VA has the burden of submitting evidence
sufficient to justify a belief by a fair and impartial
individual that the claim is well grounded. 38 U.S.C.A. §
5107(a). Only when that initial burden has been met does the
duty of the Secretary to assist such a claimant in developing
the facts pertinent to the claim attach. Id. The Court has
defined a well grounded claim as a “plausible claim, one
which is meritorious on its own or capable of
substantiation.” Murphy v. Derwinski, 1 Vet.App. 78, 81
(1990). Moreover, where a determinative issue involves a
medical diagnosis or medical causation, competent medical
evidence to the effect that the claim is plausible is
required. Grottveit v. Brown, 5 Vet.App. 91, 93 (1993).
Service connection may be established for disability
resulting from personal injury suffered or disease contracted
in line of duty, or for aggravation of a pre-existing injury
suffered or disease contracted in line of duty. 38 U.S.C.A.
§§ 1110, 1131 (West 1991); 38 C.F.R. § 3.303 (1996).
Regulations also provide that service connection may be
granted for any disease diagnosed after discharge when all
the evidence, including that pertinent to service,
establishes that the disease was incurred in service. 38
C.F.R. § 3.303(d). Additionally, specified diseases
manifested to a compensable degree within the appropriate
time period shall be granted service connection, even though
there is no record of such disease in service, for a veteran
who was exposed to an herbicide agent in service. 38 C.F.R.
§§ 3.307, 3.309 (1996).
In order for a claim to be considered plausible, and
therefore well grounded, there must be evidence of both a
current disability and of a relationship between that
disability and an injury or disease incurred in service or
some other manifestation of the disability during service.
Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992); Cuevas v.
Principi, 3 Vet.App. 542, 548 (1992).
For the reasons and bases discussed below, the Board finds
that the veteran’s claims are not well grounded. 38 U.S.C.A.
§ 5107(a).
The veteran asserts that he currently has hypertension and
that he currently has disabilities of the liver, skin, and
sinus, due to exposure to herbicide agents. Service medical
records reveal that in February 1968 warts were removed from
the veteran’s penis. The May 1969 discharge examination
report indicated a blood pressure of 146/74. A 3 day blood
pressure check was recommended. When checked on three
consecutive days in June 1969, the measurements were 132/72,
120/70, and 128/70. No history of hypertension was recorded
and it was not diagnosed in service.
The claims file contains an August 1985 medical results
interview. This document noted a history of sinusitis as
well as hypertension and increased liver enzymes.
The veteran was noted to have vasomotor rhinitis in a
February 1988 VA medical record. A November 1988 VA
outpatient treatment indicates that the veteran had chronic
vasomotor rhinitis. Allergic rhinitis was noted in January
1990.
In December 1989 the veteran was treated by dermatology for
multiple dilated keratin filled pores on the face, for warts
on the hands, and condyloma on the penis. A January 1990 VA
outpatient treatment record indicates that the veteran had
papules on his hands and on his penis. These were noted to
be warts and condyloma.
The veteran was afforded an Agent Orange examination in
February 1990. He was noted to have sinusitis and vitiligo
of the penis. The conditions were not related to herbicide
exposure
In July 1990 the veteran reported that in 1987 or 1988 he
began having problems with growths on his feet, legs, and
arms.
On VA examination in August 1990 the veteran was noted to
have patches of multiple papules on the feet, arms and back
which were consistent with lichen simplex chronicus versus
keratosis.
An August 1991 VA outpatient record indicates treatment for a
keloid on the left earlobe secondary to an earring.
VA outpatient treatment records dated from January 1992 to
August 1995 show treatment for chronic sinusitis and a
dermatological condition described as acne. On VA physical
examination in January 1994 the veteran had acne lesions on
the face and the impression included possible chronic
allergic rhinitis. A VA physical examination in August 1995
resulted in an impression of chronic rhino-sinusitis and
acne.
VA outpatient treatment records dated from February 1988 to
June 1996 reveal the veteran to have had blood pressure
measurements ranging from 116/68 to 150/108. An August 1989
outpatient record includes an impression of hypertension.
The remaining VA records do not contain any diagnoses or
impression of hypertension nor do these records indicate that
the veteran was taking any medication for hypertension.
The veteran’s records show that he served in Germany for 18
months. This was his only overseas service. As the veteran
did not serve in Vietnam the veteran may not be presumed to
have been exposed to herbicide agents. See 38 C.F.R.
§ 3.307(a)(6)(iii). Nor does a review of the veteran’s
service medical records, including the May 1969 discharge
examination report, indicate that the veteran was exposed to
herbicide agents. However, the veteran’s service records show
that he did serve in supply units and he has contended that
he was exposed as a materials handler. However, neither the
service medical records nor the post service medical records
show that the veteran has ever experienced any of the
38 C.F.R. § 3.309(e) diseases which may be associated with
exposure to herbicide agents and for which service connection
may be granted on a presumptive basis.
The Board has also considered whether the veteran is entitled
to service connection for his claimed disabilities as a
result of service in general. The veteran’s service medical
records including a May 1969 discharge examination report are
silent to any complaints or diagnoses related to the liver,
the sinus or hypertension. The veteran’s representative has
pointed out that the veteran had warts during service and
warts after service. The record does show that the veteran
had warts in February 1968 and again after service in
December 1989 and January 1990. However the medical evidence
of record does not show that the veteran currently has warts
and a current disability is required for entitlement to
service connection. See Rabideau, Supra. The veteran’s
current skin disability has been diagnosed as acne. A skin
condition characterized by acne was not shown in service.
None of the medical evidence of record links or relates any
of the veteran’s claimed current disabilities to his claimed
exposure to Agent Orange during service, or to his service in
general. Since the veteran has submitted no medical evidence
that would support his contentions, the Board finds that he
has not met his initial burden of submitting evidence
sufficient to justify a belief by a fair and impartial
individual that his claims for service connection for a liver
disability, a skin disability, hypertension, and a sinus
disability are well grounded. See Boeck v. Brown, 6 Vet.App.
14 (1993); Grivois v. Brown, 6 Vet.App. 136 (1994).
ORDER
Entitlement to service connection for a liver disability, a
skin disability, hypertension, and a sinus disability is
denied.
ROBERT D. PHILIPP
Member, Board of Veterans' Appeals
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991 & Supp. 1997), a decision of the Board of Veterans'
Appeals granting less than the complete benefit, or benefits,
sought on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988. Veterans' Judicial Review Act,
Pub. L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The
date which appears on the face of this decision constitutes
the date of mailing and the copy of this decision which you
have received is your notice of the action taken on your
appeal by the Board of Veterans' Appeals.
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